Final unofficial stats: Fourth Department 2005

Here are my unofficial 2005 stats for the Fourth Department:

Total criminal cases decided: 577
Total reversals/modifications: 58

On the face of it, the Fourth Department reversed or modified about 10% of the criminal convictions reviewed, which is right around the historic average for the Court. However, 5 of those 58 reversals were People's appeals, 2 were modifications of orders of protection that can hardly be characterized as substantive reversals, and 17 were sentence modifications (some more significant than others). When those cases are removed, the actual number of substantive, pro-defendant reversals drops to 38 for the year--or about 5% of the total criminal cases heard.

Unofficial stats: November/December 2005 term

Here are my unofficial stats for the Fourth Department's November/December 2005 term:

Total criminal cases decided: 84
Total reversals/modifications: 4

Of those four reversals, one was a People's appeal. A tough term to be a criminal defendant.

I will have the complete unofficial year-end stats for the Fourth Department tomorrow.

Leftovers (November/December term)

Here are the rest of the noteworthy decisions from the Fourth Department's November/December 2005 term (such as they are):

People v Vigliotti, __ AD3d __ (available here): Defendant's attorney was found guilty of federal crimes and disbarred subsequent to representing defendant at murder trial. It was also revealed during disciplinary action that the attorney was addicted to cocaine and alcohol during time he was representing defendant. Defendant made a 440 motion arguing that "he was denied effective assistance of counsel because defense counsel had a substance abuse addiction and was involved in criminal activity at the time he was representing defendant." (People v Vigliotti, __ AD3d at __.) The trial court denied the 440 motion without a hearing, and the Fourth Department affirmed because defendant "failed to allege any facts linking the problems of defense counsel to his representation of defendant." (Id.)

People v Harrison, __ AD3d __ (available here) & People v Haberer, __ AD3d __ (available here): sounding a familiar refrain, the Fourth Department finds the defendant's legal sufficiency arguments unpreserved because trial defense counsel failed to renew his motion after presenting evidence."

People v Little, __ AD3d __ (available here): finding Sandoval issue only partially preserved because "[a]lthough defendant contends that the court's Sandoval ruling constitutes an abuse of discretion, he objected to the court's ultimate Sandoval ruling only with respect to the ruling on a misdemeanor sexual abuse conviction, and thus only that part of his contention is preserved for our review." See my previous post on this issue here.

People v Vega, __ AD3d __ (available here): holding that defendant's waiver of right to appeal "encompasses the contention of defendant that the Rockefeller Drug Law Reform Act, enacted after he was sentenced, violates his right to equal protection of the law because it allows persons convicted of class A-I drug felonies to petition for resentencing pursuant to the Act's sentencing scheme but does not afford the same relief to persons, including defendant, who were convicted of class A-II drug felonies."

People v Taylor, __ AD3d __ (available here): emergency exception to warrant requirement found applicable where "[i]n responding to a telephone call from a relative informing the police that defendant's father was not answering telephone calls or responding to letters or knocking on his door for a period of several weeks, a police officer detected a 'strong aroma' emanating from an open window, and he believed the odor to be that of a decaying body." I have not read the cases the Fourth Department cites to for this broad reading of the emergency exception, but the fact that a person is missing for weeks and the responding officer can smell the decomposing body would seem to lead to the unremarkable conclusion that time is not really of the essence anymore.


People v McClain, __ AD3d __ (available here): SCI held jurisdictionally defective "to the extent that it charges attempted robbery in the third degree, which under the circumstances was not properly joinable with the assault charges on which defendant was held for action of the grand jury;" the Court further noted that the issue did not need to be preserved and was not encompassed by defendant's waiver of right to appeal.

People v Rodriguez, __ AD3d __ (available here): trial court erred "in permitting the prosecutor to impeach his own witnesses because the trial testimony of those witnesses did not tend to disprove the People's position with respect to a material fact or affirmatively damage the People's case," but error harmless.

Fourth Department splits with First and Second Departments over correct "justification" charge in murder cases with manslaughter lessers

People v Bolling, __ AD3d __ [available here]

At the end of Brandon Bolling's murder trial, the trial court "submitted the two counts of murder followed by the lesser includes charges of manslaughter in the first and second degrees, and then gave an appropriate charge on the defense of justification, instructing the jury to acquit defendant of any charge it found he committed if the People failed to disprove justification beyond a reasonable doubt." (People v Bolling, __ AD3d __, ___ [4th Dept 2005].) The trial court did not further instruct the jury "that, if it found that defendant's conduct was justified with respect to the first count of the indictment, it should cease deliberating and should not consider the second count or any lesser included counts." (Id.) On appeal, defendant argued that the failure to give this further charge--that once justification was found on a top charge, the jury must acquit on all lesser counts and stop deliberating--was error requiring reversal. The Fourth Department disagreed and affirmed, explaining only that "the court's charge was a correct statement of the law when viewed in its entirety and adequately conveyed to the jury 'the correct principles of law to be applied to the case.'" (Id [citations omitted].)

As noted by the Fourth Department in its decision, the First and Second Departments have reached the opposite conclusion on this issue. Just this past year, the Second Department in People v Feuer noted:

This Court has repeatedly held that the error committed by the trial court in failing to instruct the jurors that if they found the defendant not guilty of a greater charge on the basis of justification, they were not to consider any lesser counts, is of such nature and degree so as to constitute reversible error. Our precedent in this regard is sound and ineluctable.

(People v Feuer, 11 AD3d 633, 634 [2d Dept 2004].)

The reason for reversing in cases where the jury was not expressly told that a finding of justification on a top charge precludes a finding of guilty on a lesser charge is simple: if the jury finds defendant's actions were justified, the defense does not simply knock out an element or negate intent, but rather renders the conduct entirely lawful. Thus, where no specific charge is given, "there is no way of knowing whether the acquittal of the two murder counts was based on a finding of justification, so as to require acquittal of the two manslaughter counts as well, [and] the judgment must be reversed and the indictment dismissed [...]." (People v Roberts, 280 AD2d 415, 416 [1st Dept 2001].)

The reasoning of the First and Second Departments seems sound, and the Fourth Department's decision in Bolling does not attempt to address the reasoning adopted by the decisions from the First and Second Departments, and instead simply states that "we decline to follow them." (Bolling, __ AD3d at ___.) Whatever the Fourth Department's reasoning, the split between the Fourth Department and the First and Second Departments on this issue could not be more clear; hopefully the Court of Appeals will grant leave and settle the matter.

I Give You . . .

the two substantive pro-defendant reversals from the Fourth Department's latest term.

People v Skardinski, __ AD3d __ [available here]
People v Fagan, __ AD3d __ [available here]

Each opinion reaches a good result, but neither breaks any new ground. In People v Skardinski, the Fourth Department found the DWI defendant's purported "consent" to a blood test was not voluntary where, 1) she was very badly injured from the accident, 2) she was receiving copious amounts of morphine, 3) the State Trooper lied to her about the consequences of withholding consent, and 4) "defendant signed the consent for at an irregular angle across the title of the document rather than on the designated signature line." (People v Skardinski, __ AD3d at __.) The Fourth Department's opinion comes to the unremarkable conclusion that any consent obtained from a severely injured, drugged up defendant who has been lied to by the police is not voluntary. The only question raised by this opinion is how the trial court found consent on those facts in the first place.

The other term's reversal is People v Fagan, where the Fourth Department reversed because "County Court erred in refusing to charge the jury on the justifiable use of deadly physical force to prevent or terminate a burglary." (People v Fagan, __ AD3d ___.) The facts of Fagan read like a real-life match of paper-rocks-scissors:

When viewed in a light most favorable to defendant, the evidence herein establishes that the victim threatened to kill defendant and then chased defendant into defendant's house while carrying a hatchet. When the victim fell once inside the house and dropped the hatchet, defendant picked up the hatchet. The victim ran outside and then reentered the house, swinging a two-by-four at defendant.

(Id. at __.)

On those facts, the Court concluded "that there is a reasonable view of the evidence that the victim entered and reamained inside defendant's house with the intent to commit a crime, i.e. an assault. The victim's 'violent conduct and numerous threats to kill defendant . . . support the reasonableness of defendant's belief that deadly physical force was necessary to prevent or terminate a burglary.' The court thus erred in failing to instruct the jury on the justifiable use of deadly physical force to prevent or terminate a burglary." (Id..) The lesson of Fagan is a practicle one: a machete will beat a two-by-four every time.

Decision Day (November/December 2005 Term)

The Fourth Department handed down decisions for the November/December 2005 term today. No standout opinions (although I guess defense attorneys should not complain after the two great Court of Appeals decisions handed down this week). For tonight, I will highlight People v Fuqua, a case that should serve as a cautionary tale to would-be criminals about the care and thought that needs to go into picking a proper street name--preferable one that will not come back to haunt you. The issue in Fuqua was whether the police officer had reasonable suspicion to believe Mr. Fuqua was armed sufficient to justify the pat-down search for weapons that led to the discovery of drugs. The Court had no problem in finding such reasonable suspicion existed, in part because the "defendant's street name, "Blaze Off", related to defendant's propensity to use guns." (People v Fuqua, __ AD3d __ [available here].) For those defense attorneys employing a holistic approach to criminal defense work, perhaps it is worth considering advising your clients of the benefits of a wussy street name (perhaps Fuzzy or Cuddles). Sure, such a moniker does not exactly inspire fear; but neither does it give a police officer reason to believe you are carrying.

More on the other notable decisions from this terms packet (along with more on the two great Court of Appeals decisions decided this week) over the next few days.

People v Suarez: First Thoughts

It is beyond clear that the Court of Appeal's per curiam opinion in Suarez is meant to be a practical guide to trial courts dealing with the difficult issues raised by the Court's prior decisions in Gonzalez, Hines, and Payne. In a nutshell: the Court holds that "depraved indifference" murder and intentional murder should almost never be submitted together to the jury--and in a case where the indictment charges both intentional and "depraved indifference" murder, the trial court should dismiss one of counts before giving the case to the jury. From the opinion:

When depraved indifference murder is properly understood, 'twin-count' indictments--charging both intentional homicide and depraved indifference murder--should be rare. Twin-count submissions to a jury, even rarer. For by the time the proof has been presented, it should be obvious in most cases whether or not the evidence establishes 'an intentional [killing] or no other'. Thus, where twin-count indictments are lodged, trial courts should presume 'that the defendant's conduct falls within only one category of murder and, unless compelling evidence is presented to the contrary, dismiss the count that is least appropriate to the facts.'

(People v Suarez, __ NY3d at __.)

Indeed, for purposes of a single-victim homicide (i.e. excluding the "shooting/driving/throwing a grenade into a crowd" scenario),the Court has limited the proper scope of "depraved indifference" murder to two rare factual situations:

[D]epraved indifference murder can also be found in certain unintentional killings involving only a single individual. These limited cases are those in which--although the intent to kill is absent--the defendant's utter depravity in causing the victim's death warrants punishment in excess of that available for manslaughter. [...]

Two fact patterns have recurred over the past four decades of experience under the Revised Penal Law. First, when the defendant intends neither to seriously injure, nor to kill, but nevertheless abandons a helpless and vulnerable victims in circumstances where the victim is highly likely to die, the defendant's utter callousness to the victim's moral plight--arising from a situation created by the defendant--properly establishes depraved indifference murder. [...] Second, . . . the crime is . . . established when a defendant--acting with a conscious objective not to kill but to harm--engages in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim.

(Id. at __.)

I would guess the Court's per curiam opinion will have its (apparently) intended effect of dramatically reducing the charging of "depraved indifference" murder to a rare subclass of murder, and thereby avoid entirely the thorny issues that arise when the jury convicts a defendant of depraved indifference murder where the evidence shows a manifest intent to kill. Of course, the Court is also (quite legitimately) attempting to spare itself the unpleasant task of reversing those "depraved indifference" convictions, and opening the prison gates on intentional killers because prosecutors and trial courts want to have their cake and eat it, too.

One quick nit to pick from the decision: in discussing the difference between "depraved indifference" murder and manslaughter in the first degree, the Court notes:

[S]omeone who intends to cause serious physical injury does not commit depraved indifference murder because the intended victim dies. By definition, "serious physical injury" includes injury "which creates a substantial risk of death, or which causes death". Thus, one who acts with the conscious intent to cause serious physical injury, and who succeeds in doing so, is guilty only of manslaughter in the first degree. Otherwise, every intentional manslaughter would also establish depraved indifference murder--a result plainly at odds with the discrete classification set forth in the statute.

(Id. at ___.)

I strongly disagree with that bolded bit. In fact, it does not take much imagination to think of a fact scenario where a person can intend to cause serious physical injury and ultimately cause death, but not create and disregard a grave risk of death in doing so. For example: suppose Victim owes substantial gambling debts to Defendant. Defendant cuts off Victim's thumb to encourage payment. Unbeknowst to Defendant, Victim has no clotting agents in his blood, and bleeds to death before treatment can be rendered. In that scenario, a conviction for first degree manslaughter is clearly made out: Defendant intended to cause serious physical injury (cutting off the thumb), and death resulted. However, it does not follow that "depraved indifference" murder is made out, because the harm inflicted did not create a grave risk of death, and Defendant did not ignore any such risk by cutting the thumb off.

But the flip-side is also true--in certain situations, a conviction for manslaughter in the first degree and a conviction for depraved indifference murder can be completely consistent. The reason is simple: a person can act with a different mental state for different results. For example: say our Victim owes gambling debts, but this time Defendant cuts off Victim's leg and leaves him bleeding on a busy street corner. Victim dies as a result of his wounds. The Defendant testifies that he had no intent to kill, because then he would never collect his debt. Assume the jury believes Defendant. In that case, a conviction for manslaughter in the first degree is clearly made out: Defendant intended to cause serious physical injury, and death resulted. I would also argue that a conviction for depraved indifference murder is made out, because Defendant, while not intending to cause death, arguably created a grave risk of death by cutting off Victim's leg, and ignored that risk in going ahead with the amputation. I would argue both counts are consistent, both could be submitted to the jury, and the jury could convict on both: as to the outcome of serious physical injury, Defendant acted intentionally; as to the outcome of death, Defendant acted recklessly (by creating the grave risk of death and ignoring it) under circumstances evincing a depraved indifference to human life.

I understand what the Court of Appeals is doing--they are clarifying a messy area of the law and providing (hopefully) clear guidelines for trial courts to follow. However, I think the Court's conclusory holding that every time a defendant intends to cause serious physical injury and death results he "is guilty only of manslaughter in the first degree" ignores that a defendant can have separate, distinct mental states for different distinct results.

Moreover, this distinction between manslaughter in the first degree and "depraved indifference" murder may lead to some counter-intuitive outcomes. Take a fact scenario similar to the one encountered in People v Kibbe (35 NY2d 407). The Court in Suarez held out the facts of Kibbe as the quintessential "depraved indifference" murder; as the Court notes, the defendants in Kibbe "robbed an intoxicated victim and forced him out of a car on the side of a dark, remote, snowy road, partially dressed and without shoes in subfreezing temperatures, where he was struck by a passing truck and killed." (Suarez, __ NY3d at ___.) Fair enough. But change the facts a little, and assume the intoxicated victim was robbed, intentionally stabbed in the thigh and then dumped on the side of the road in subfreezing temperatures, and the victim died of blood loss (with death's arrival hastened by exposure). By the majority's logic in Suarez, this fact pattern can only support a conviction for manslaughter in the first degree (because defendant intentionally inflicted a serious physical injury [the stab wound to the thigh] and death resulted). But this is counter-intuitive, because if the defendant been less evil and not stabbed the victim in the leg before dumping him, then he would be subject to the much more severe criminal sanction of a "depraved indifference" murder conviction. I think this is unnecessarily rigid--why not hold instead that a conviction for manslaughter in the first degree does not necessarily preclude a conviction for "depraved indifference" murder because the relevant mens reas are not mutually exclusive (i.e. two different mens reas for two different results [intentionally causing serious physical injury, recklessly causing death])?

Perhaps this is why the three-judge concurrence notes that "law school hypotheticals are not the stuff of day-to-day criminal courts." (Id. at __.) More on the concurring opinions and Judge Graffeo's dissent soon.

BREAKING: Court of Appeals hands down important "depraved indifference murder" decision

People v Suarez & People v McPherson __ NY3d __ (available here.)


The Court of Appeals has just handed down a lengthy, in-depth per curiam opinion further dealing with the difference between "depraved indifference" murder in the second degree, "intentional" murder in the second degree, manslaughter in the first degree and manslaughter in the second degree. (See my previous posts on this topic here, here, and here.) This joint appeal involved two defendants who were convicted of "depraved indifference" murder for stabbing their victims to death. The per curiam opinion reverses both convictions, and further clarifies that "depraved indifference" murder is not properly charged in the majority of cases; from the opinion:

The proliferation of the use of depraved indifference murder as a fallback theory under which to charge intentional killers reflects a fundamental misunderstanding of the depraved murder statute . . . depraved indifference murder properly applies to only a small, and finite, category of cases where the conduct is at least as morally reprehensible as intentional murder.

(People v Suarez, __ NY3d at __.)

The per curiam goes on to distinguish (at great length) depraved indifference murder from intentional murder and both degrees of manslaughter. Obviously, I will have much more to say about this opinion after a chance to fully digest it. The most interesting bits come from the three-judge concurrence of Judge G.B. Smith, Judge R.S. Smith and Judge Rosenblatt, who "would take a step beyond the per curiam opinion and say what the Court stops short of saying: that Register and Sanchez should be explicitly overruled." (Id. at __.) Judge Read also writes separately to concur, and Judge Graffeo concurs in one case and dissents in the other.

All in all, a monster decision in what was already an eventful week for the Court of Appeals (see my previous post on Goldstein here.)

Plus, the Fourth Department hands down decisions from its November/December term today.

Court of Appeals: Psychiatrist's trial testimony about what non-testifying third-parties told her prior to trial "testimonial" under Crawford

People v Goldstein, __ NY3d __ [available here]

The Court of Appeals today handed down an opinion defining for the first time in New York the reach of the Supreme Court's recent decision in Crawford v Washington. The Supreme Court in Crawford left open the most important question--what consitutes a "testimonial" statement? Importantly for criminal defendants, the Appeals (with Judge R.S. Smith writing for the majority) set forth a broad definition of "testimonial", holding that the statements of certain non-testifying third-parties made to the People's retained psychiatrist before trial were testimonial because "we infer that [the third-parties] knew they were responding to questions from an agent of the State engaged in trial preparation. None of them was making 'a casual remark to an acquaintance'; all of them should reasonably have expected their statements 'to be used prosecutorially' or 'to be available for use at a later trial.'" (People v Goldstein, __ NY3d __ [2005].) The Court went on to note "[r]esponses to questions asked in interviews that were part of the prosecution's trial preparation are 'formal' in much the same sense as 'depositions' and other materials that the Supreme Court identified as testimonial . . . Nor do we think the difference between an expert retained by the State and a 'government officer' is of consitutional significance here." (Id.) The Court reversed because the psychiatrist was able to repeat what she was told by these third-party witnesses at trial without those third-parties being available for cross-examination. (Id.)

This is a great opinion that reasonably defines "testimonial" in a broad sense, and should cover most statements by witnesses to police officers during a criminal investigation, autopsy reports (see my previous post on this open question here), and any number of other statements made under express questioning by law enforcement agents.

Judge Read dissented, but only because she would have found the error
harmless. (Id.)

The Goldstein opinion also calls into question Justice Fisher's recent decision in Green v DeMarco (posted about here), where he found DWI certification records not testimonial. Certainly, whatever else the Albany techs servicing the breathalyzers knew or thought about the nature of their calibration work, they should have reasonably known that the calibration records they generated would be used to prosecute DWI defendants. It does not seem to be possible to square Justice Fisher's decision in DeMarco with today's Court of Appeals decision in Goldstein.

Court of Appeals: Representation by "impostor" posing as attorney subject to showing of prejudice if co-counsel duly admitted

People v Jacobs, 2005 WL 3452323, 2005 NY Slip Op 09574 [available here]

When James Jacobs stood trial under a 10 count indictment for robbery, assault and "related charges", he (quite reasonably) thought that both of the lawyers defending him were duly licensed attorneys. Turns out, one of his attorneys--the one who gave the opening statement, put on the defense witnesses, made the motion for a trial order of dismissal, and lodged various objections during the course of the trial--was not actually a lawyer, but rather a "law school graduate who has passed the bar but [wa]s masquerading as a duly licensed attorney". (People v Jacobs, __ NY3d __ [G.B. SMITH, J., dissenting].) Although the Court of Appeals has previously "held that when 'a defendant in a criminal proceeding has unwittingly represented by a layman masquerading as an attorney but in fact not licensed to practice law, his conviction must be set aside without regard to whether he was individually prejudiced by such representation" (Jacobs, __ NY3d at ___, quoting People v Felder47 NY2d 287, 291 [1979]), Chief Judge Kaye's majority opinion in Jacobs draws a distinction with this prior precedent and affirms Mr. Jacobs' conviction:

A defendant is entitled to the effective assistance of counsel. And because counsel 'can mean nothing less than a licensed attorney at law', a defendant who is represented only by a layperson has been completely deprived of counsel and is entitled to per se reversal of a resulting conviction. But when, as here, a defendant has been at all times represented by an admitted attorney, mere participation of a non-lawyer in the defense does not, without more, mandate reversal.

Rather, because the active participation of a licensed attorney throughout a defendant's trial should generally suffice to ensure that the defendant's rights are protected, a conviction should not be reversed in the absence of a showing of prejudice.

(Jacobs, __ NY3d at __. [citations omitted].)

Judge G.B. Smith dissented. While his dissenting opinion agrees for the most part with the majority's legal guideposts (i.e. that per se reversal is only appropriate in instances of total deprivation of counsel), he argues that the fact that an unlicensed layperson was solely responsible for representing defendant at key stages of the proceeding--including at opening statements, during the defense case, and while arguing for a trial order of dismissal--the deprivation of defendant's right to counsel was complete for those stages. From the dissent:

[A]t a bare minimum, the right to counsel means the right of a defendant to be represented by a licensed attorney at law during all phases of the criminal proceeding. Here, defendant was not afforded such protection during his opening statement and the presentation of his case. [...]

Because this case involves the absolute deprivation of counsel during those portions of the trial handled by an imposter, not representation, related to those portions of the trial conducted by a duly licensed counsel, that may or may not have been effective and meaningful, the Felder rule, that defendant is not required to demonstrate that he was prejudiced in terms of his representation, applies.

(Jacobs, __ NY3d at __ [G.B. SMITH, J., dissenting].)

If the licensed attorney in Jacobs was the supervisor of the unlicensed attorney, I would be comfortable with the majority's opinion, because under those facts one could be reasonably assured that the non-licensed impostor's actions at trial were being monitored (and presumably subject to the pre-approval of) a licensed attorney. But this was not the case in Jacobs--the licensed attorney and the non-licensed imposter were colleagues who split up the trial duties as a matter of efficiency, and no supervisory relationship existed. (Jacobs, __ NY3d at __.) Thus, one of the factual planks of the majority's reasoning--that "the active participation of a licensed attorney throughout a defendant's trial should generally suffice to ensure that the defendant's rights are protected"--does not really support the weight put upon it by the majority. For all we (or the Court) know, the licensed co-counsel was doing the crossword while the imposter was opening; or perhaps the only attorney at the defense table was putting the finishing touches on her closing argument while the imposter was making the motion for a trial order of dismissal.

That said, surely the factual scenario giving rise to the Jacobs decision is a rare one, so the majority's opinion should not have much fallout.

Nicole over at Sui Generis has her own take on Jacobs here. Sui Generis has also been added to the Blawgs list over at the left.

Just in time for the holidays . . .

People v Hendrie, __ AD3d __ [3d Dept 2005] [available here.]

Nothing puts you in the holiday spirit quite like the following fact pattern from a recent Third Department decision:

On the evening in question, defendant went to the residence of his former girlfriend, Helen LaPorte, ostensibly to deliver a Christmas gift for the LaPorte children. Upon arrival, however, defendant withdrew a sawed-off shotgun from the Christmas package, forced his way into the residence and thereafter shot and killed [his ex-girlfriend's new boyfriend].

(People v Hendrie, __ AD3d __.)

Well, I guess the holidays can be pretty stressful. Beyond the festive facts, the Court in Hendrie held that the mildly retarded defendant with an IQ of 55 was nevertheless competent to knowingly, voluntarily and intelligently waive his Miranda rights. From the decision:

Defendant's contention is that, as a result of his being mildly mentally retarded, he was incapable of fully comprehending his constitutional rights to remain silent and to the assistance of counsel. In support of this contention, defendant presented the testimony of a psychologist who . . .concluded that the defendant's IQ test score of 55 placed him at the low end of the mild mental retardation range. This expert witness further testified, as relevant hereto, that defendant lacked the capacity to understand the concepts embodied in the Miranda warnings given to him by the police.

Subnormal intelligence, in and of itself, does not require suppression of statements where it is established that a defendant had the ability to understand the basic concepts of the right to remain silent, the right to the assistance of counsel and the fact that any statement could be used against him or her. In our view, the record lacks any indicia that defendant failed to sufficiently comprehend the warnings . . . [t]he prosecution witnesses established that defendant was composed and relaxed and responded to questions in a normal and appropriate manner, at no time exhibiting any uncertainty or confusion.

(Hendrie, __ AD3d at __ [emphasis added].)

This is a troubling decision. The Third Department recognized in the decision that it was the People's burden to establish the defendant understood his rights, but the Court then treats the "lack of indicia" in the record that defendant did not understand the rights as sufficient to establish that he must have understood them. This is circular, and allows the People to establish understanding by negative inference. Further, it is hard to see how the defendant being "composed and relaxed" gives any inference of competence to understand the Miranda warnings. And how an "absence of indicia" and calm demeanor can somehow overcome an expert psychologist's opinion that the defendant was not able (by reason of mental retardation) to understand the warnings is beyond me.

Surprise decisions

People v Rucinski, 2005 NY Slip Op 09437 [available here]

Green v DeMarco, __ Misc 3d ___ [available here]

The Fourth Department is not handing down decisions from the November/December term until December 22. But Christmas came early for one appellant, as the Court posted one new decision a week or two early and reversed a defendant's conviction for Assault in the Second Degree (hat tip: Sui Generis). In People v Rucinksi, the assault second was charged under the section of the penal law that elevates the degree of assault if physical injury is inflicted "in the course of and in furtherance of the commission . . . of a felony", because defendant caused physical injury as a result of driving while intoxicated. The People argued that the felony DWI could serve as the underlying "felony" for purposes of charging assault in the second degree; the Fourth Department disagreed and held the Legislature has already "created a statutory framework for vehicular assaults and the heightened risks posed by intoxicated drivers [...], thereby rendering reliance upon general assault statutes inappropriate in cases involving vehicular assaults. [...] We thus conclude that a felony DWI may not serve as the underlying felony for assault in the second degree [...]." (People v Rucinski, 2005 WL 3313144.) This decision is a welcome and logical extension of the Fourth Department's prior decision in People v Snow, where the Court reached the same conclusion as to charging the similar provision for assault in the first degree. (See People v Snow, 138 AD2d 217.)

Today's other significant decision (Green v DeMarco) comes not from the Fourth Department, but from Supreme Court Justice Kenneth Fisher, who handed down a decision in an article 78 proceeding filed by the Monroe County District Attorney that alleged a Town Court judge's ruling that two "certification" documents offered in support of DWI prosecutions to establish that the breathalyzer was working correctly were testimonial hearsay and thus inadmissible absent an opportunity to cross-examine the lab techs from Albany who prepared the certifications. Got all that? This decision is thoughtful and well-written, and requires more attention than I have the energy or time to give it tonight. The nutshell for now: Justice Fisher disagreed with the Town Court, and held that the type of certifications at issue had "primary business purposes", were not "accusatory statements", and did not otherwise "implicate the core concerns of the Confrontation Clause as interpreted by Crawford." (Green v DeMarco, cite.) Besides the obvious Crawford issues raised by this decision, another is raised: can a Supreme Court Justice essentially sit as an appellate judge and second-guess a Town Court judge on an evidentiary issue that would otherwise not be appealable by the People? Is this a proper use of an article 78 proceeding? I do not know the answer, but will post at more length on this issue and the more obvious Crawford issues over the next few days.

Court of Appeals: Leftovers

People v Green, __ NY3d __, 2005 WL 3091106

In a somewhat counter-intuitive decision, the Court of Appeals holds in People v Green that, while a defendant may have a perfectly viable defense to a criminal charge, he is not necessarily entitled to have the jury instructed on that defense. Mr. Green was arrested and charged with robbery for forcibly taking a CD player from a man named Pabon--"Defendant snatched the player out of Pabon's hand, walked away and allegedly began listening to the 'Busta Rhymes' CD in the disc player." (People v Green, 2005 WL 3091106.) Mr. Green claimed the disc player and Busta CD was actually his, and had been taken from him earlier that day. As the Court notes in its decision, this can be a valid defense to robbery--"because the prosecution must prove beyond a reasonable doubt that the defendant intended to take property from someone with a superior right to possession, a good-faith but mistaken claim of right might defeat a robbery prosecution." (Id.) However, the error claimed on appeal was not that the trial court thwarted defendant's attempt to make out this defense; it was that the trial court erred in refusing to specifically charge the jury that defendant's good-faith belief that the CD player was his could be a defense to the robbery. The Court of Appeals held that the defendant was not entitled to an instruction:

[S]imply because a jury might be convinced by a claim-of-right argument, it does not follow that a claim-of-right charge, derived from a statutory defense limited to certain types of larceny, is also available to defendants in robbery prosecutions. Such an instruction by the court, over and above an instruction on the element of intent, unquestionably aids the defendant by underscoring one aspect of proof, or lack of proof. The Legislature did not provide that additional assistance where the defendant employs physical force.

(Id. [emphasis in original])

The Court notes the policy issue involved--"a claim-of-right charge in the robbery context encourages forcible self-help in pursuing property"--and that very practical consideration no doubt played a part in the outcome. (Id.) However, it leaves similarly-situated defendants in the somewhat awkward position of having a complete defense recognized by the Court of Appeals, but no way to specifically inform the jury of this defense. (Id. [leaving defendants "free to make the argument to the jury" but entitled to no charge].) Regardless of the policy involved, this seems a bit odd.

People v Carvajal, __ NY3d __, 2005 WL 3108185

As noted previously, this decision is a monster--a 17 page majority opinion followed by 23 pages of dissent. The majority's holding in a nutshell--a New York conviction for constructive possession of drugs can stand even though neither the defendant nor the drugs were in New York at the time of arrest, where the defendant engaged in conduct in New York sufficient to establish a conspiracy to possess the out-of-state drugs, because CPL 20.20[1][c] allows for "jurisdiction over an offense . . . based on a conspiracy occurring in New York to commit that offense." (People v Carvajal, 2005 WL 3108185.) The dissent argued that "the Constitution of the State of New and the laws of the State of New York do not permit a person to be found guilty of criminal possession of a controlled substance on a theory of constructive possession rather than actual possession where both the substance and the defendant are in California [...]." (Id.)

Police officer's subjective intent relevant for Miranda "interrogation" analysis?

People v Decker, 2005 NY Slip Op 08569, 2005 WL 3022014 [available here]

In a drug prosecution alleging that defendant was in constructive possession of certain drugs found in his apartment, the police asked defendant "which key on the key ring opened the door to defendant's apartment." (People v Decker, 2005 WL 3022014.) The Fourth Department in People v Decker held that this express questioning about the keys was not interrogation under a Miranda analysis because "[t]hat question was not designed to invoke an incriminating response." (Id.) This focus on "question design", i.e. what the officer subjectively believed about the purpose of the question, seems at odds with clear Court of Appeals precedent. In fact, it is hard to see how the Court of Appeals could be any more clear on this score:

What constitutes 'interrogation' of a suspect . . . is determined not by the subjective intent of the police, but by whether an objective observer with the same knowledge concerning the subject as the police had would conclude that the remark or conduct of the police was reasonably likely to elicit a response.

(People v Ferro, 63 NY2d 316, 319 [1984].)

It will be interesting to see if the Court of Appeals grants leave to review whether the Fourth Department has strayed too far in Decker, or whether the seeming irreconcilable holdings of Decker and Ferro are chalked up to loose language.

Unofficial stats (October 2005 term) and Best of the Rest

Here are my unofficial stats for the Fourth Department's October 2005 term:

Total criminal decisions: 91
Reversals / modifications / remands: 8

A busy term, and just a click fewer reversals than normal. Here are the other notable decisions from the term:

People v Brown: depraved indifference murder conviction supported by legally sufficient evidence where the "People presented evidence establishing that the bullet responsible for the victim's fatal injuries took a highly unusual route, entering the chest cavity of the victim through the forearm."

People v Narrod: trial court erred in allowing an "arson investigator to testify that he had ruled out accidental causes of the fire" because "the expert's testimony improperly invaded the jury's province." No reversal, though; the Court held the error harmless.

People v Albanna: trial court erred by refusing to charge Assault in the second degree as lesser included offense of Assault in the first degree.

People v Coleman: illegal to sentence defendant as persistent violent felony offender on Robbery 3rd conviction because "the crime of robbery in the third degree is not a violent offense."

People v Fortner & People v Semple: waiver of right to appeal does not encompass challenge to enhanced sentence where "defendant was not informed at the time of the plea that he must return for sentencing in order to avoid the imposition of an enhanced sentence."

People v Garrett: error to run definite sentence consecutive to indeterminate sentence.

People v Caito (or, note my exception, yet again): "Defendant failed to object to the court's ultimate Sandoval ruling and thus failed to preserve for our review his contention that the ruling constitutes an abuse of discretion."

I'll deal with the leftovers from the past month's Court of Appeals decisions over the next few days.